Jackson v. Stonebridge Hospitality Associates, LLC

          MEMORANDUM OPINION AND ORDER

          NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the court on Defendant Stonebridge Hospitality Associates, LLC's (“Defendant” or “Stonebridge”) Motion for Summary Judgment (or “Motion”), filed August 9, 2019. [#50]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference for all purposes dated August 29, 2018, [#15], and concludes oral argument will not materially assist in the resolution of this matter. Accordingly, having reviewed the Motion and associated briefing, the applicable case law, and the entire record, I GRANT the Motion for Summary Judgment for the reasons stated herein.

         PROCEDURAL HISTORY

         This civil action arises out of allegations by Plaintiff Mark Jackson (“Plaintiff” or “Mr. Jackson”), a former employee of Stonebridge, that Defendant discriminated against him because he is African-American and retaliated against him for opposing discrimination in the workplace. See generally [#1; #4; #6]. Believing Defendant's conduct violated his civil rights under Title VII of the Civil Rights Act of 1964 (“Title VII), 42 U.S.C. §§ 2000e et seq., Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on or about February 8, 2017. See [#6 at 2]. The EEOC dismissed Plaintiff's charge of discrimination and retaliation and issued him a Notice of Right to Sue letter on or about March 7, 2018. See [id.]. On June 6, 2018, Plaintiff initiated this action by filing his pro se Complaint and asserts claims under Title VII for disparate treatment based on race (“Claim 1”) and for retaliation (“Claim 2”) as well as a state law claim for breach of an implied contract of employment (“Claim 3”). See [#1; #6].

         The Parties proceeded through discovery, and Stonebridge filed the instant Motion for Summary Judgment on August 9, 2019, arguing for summary judgment in its favor on all of Mr. Jackson's claims. See [#50]. Mr. Jackson has since responded in opposition to the Motion for Summary Judgment and Defendant replied. See [#52; #54]. This matter is set for a four-day jury trial to commence on February 10, 2020. Because the Motion is now ripe for consideration, I consider the Parties' arguments below.

         LEGAL STANDARDS

         I. Rule 56

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). It is the movant's burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). And the court will “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.” Zia Shadows, L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016).

         In applying this legal standard, the court is mindful that Mr. Jackson proceeds pro se and thus liberally construes his filings. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court does not act as his advocate and applies the same procedural rules and substantive law to Mr. Jackson as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).

         II. Evidence on Summary Judgment

         Once the movant demonstrates an absence of evidence supporting an essential element of the nonmovant's claim, the burden shifts to the nonmovant to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). To satisfy this burden, the nonmovant must point to specific facts in an affidavit, deposition, answers to interrogatories, admissions, or other similar admissible evidence demonstrating the need for a trial. See Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir. 1995); cf. Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (“[A] mere ‘scintilla' of evidence will be insufficient to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some ‘significant probative evidence tending to support the complaint.'” (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249, 252 (1986))). Conclusory statements or those based on speculation, conjecture, or surmise provide no probative value on summary judgment, see Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990); nor may the nonmovant rely on “mere reargument of his case or a denial of an opponent's allegation, ” see 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998).

         The onus is therefore on the nonmovant to point to competent summary judgment evidence demonstrating a need for trial. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The court cannot and does not weigh the evidence presented or determine the credibility of witnesses, see Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008), and may consider only admissible evidence, see Johnson v. Weld County Colo., 594 F.3d 1202, 1209 (10th Cir. 2010) (disregarding hearsay on summary judgment when proper objection to its use was before the court and no exception applied). While the evidence need not be in a form that is admissible at trial (e.g., affidavits are often inadmissible at trial on hearsay grounds), the substance must be admissible at trial. See Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016); accord Hasan v. AIG Prop. Cas. Co., 935 F.3d 1092, 1098 (10th Cir. 2019) (“Although a party may submit an affidavit or declaration in opposing summary judgment, the content must be based on personal knowledge and must set forth facts that would be admissible in evidence.” (internal quotation marks omitted)). “To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.” Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006).

         ANALYSIS

         I. Undisputed Material Facts

         This court draws the following undisputed material facts from the record.

         1. On or about February 3, 2016, Defendant hired Mr. Jackson, an African-American male, as a Social Hour Attendant at Defendant's Homewood Suites, a hotel located in Denver, Colorado. See [#50-1 at ¶¶ 3, 8; #50-3 at 58:18-20;^[1] #52 at 287, ¶ 3].

         2. As a Social Hour Attendant, Mr. Jackson's duties included preparing meals for the social hour-a two-hour period in the evenings when guests of the Homewood Suites could eat at a buffet. See [#50-3 at 60:12-61:1; #52 at 287, ¶ 6].

         3. Mr. Jackson worked approximately 30 hours per week, including four shifts of seven hours beginning at 2:00 p.m., though he sometimes worked longer than his scheduled seven hours. See [id. at 61:7-62:7, 63:16-64:5].

         4. Mr. Kevin Smith, an African-American male, was the Food and Beverage Manager for Homewood Suites and was Mr. Jackson's immediate supervisor; Mr. Gustavo de Almeida, a Hispanic male, was the Assistant General Manager for Homewood Suites and was Mr. Smith's immediate supervisor; and Mr. Tom Sprankle was the General Manager of the Homewood Suites. See [#50-1 at ¶¶3, 5-7; #50-3 at 65:15-18; #52 at 110:23-111:7].

         5. On or about Mr. Jackson's first day of employment, he completed Stonebridge's New Hire Orientation, which included an overview of Stonebridge's personnel and safety policies, and received and reviewed Stonebridge's Associate Handbook. See [#50-1 at ¶¶ 9-10; #50-2; #50-3 at 66:6-14, 66:24-67:6, 67:22-24, 68:9-18, 69:5-7; #50-4 at 6].

         6. Stonebridge's Associate Handbook (the “handbook”), which Mr. Jackson contends constitutes an employment contract with Stonebridge, provides, in pertinent part,

EMPLOYMENT WITH STONEBRIDGE COMPANIES IS AT-WILL. ASSOCIATES HAVE THE RIGHT TO END THEIR WORK RELATIONSHIP WITH THE COMPANY, WITH OR WITHOUT ADVANCE NOTICE AND FOR ANY REASON. THE COMPANY HAS THE SAME RIGHT.

THE LANGUAGE USED IN THIS HANDBOOK AND ANY VERBAL STATEMENTS MADE BY MANAGEMENT DO NOT CONSTITUTE AN EXPRESS OR IMPLIED CONTRACT OF EMPLOYMENT. NOR DO WE GUARANTEE EMPLOYMENT FOR A SPECIFIC LENGTH OF TIME OR NUMBER OF HOURS. ANY CONTRACT OR AGREEMENT REGARDING THE TERMS OF YOUR EMPLOYMENT MUST BE IN WRITING AND SIGNED BY THE PRESIDENT, THE COO, OR APPOINTED ASSOCIATE OF THE COMPANY.

THE VIOLATION OF ANY PROCEDURE, RULE, REGULATION OR CODE MAY RESULT IN DISCIPLINARY ACTION, UP TO AND INCLUDING TERMINATION.

[#50-2 at 5].

         7. The handbook warns employees that seven absences or seven instances of “lateness” “in a twelve month [sic] period are considered excessive and may be grounds for termination”; it also prohibits Stonebridge employees from having personal visitors or taking personal calls while at work. See [id. at 6].

         8. Approximately three weeks after Mr. Jackson began working for Defendant, he injured his back at work while attempting to put trash in a trash can, causing him to miss several days of work. See [#50-1 at ¶ 11; #50-3 at 69:14-72:11; #52 at 287, ¶ 4].

         9. Plaintiff received medical treatment for his injury pursuant to Stonebridge's workers compensation coverage. See [#50-1 at ¶ ...